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LING 2450 (1)


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York University
LING 2450
Philipp Angermeyer

LING 2450 LECTURE NOTES – WINTER TERM JANUARY 9 , 2013 What is Linguistics? - Even with different languages, language is universal – all human beings are capable of using/learning language - Linguistics is divided into subfields that focus on different parts of language structure: o Phonetics : what are human speech sounds  Describing speech sounds. How articulation works, acoustics – medical side o Phonology: what are the sound systems of languages  Different languages make different uses of potential ranges of speech sounds  What are the commonalities and the principles that govern them o Morphology: what are meaningful units of speech and how are they combined into words  Example: mean-ing-ful (three different units that can occur by themselves or in other situations) o Syntax: how words are combined into sentences  Look at what words altogether are doing o Semantics: how meaning is created in grammar o Discourse: how communication works; how conversations or written texts are structured How Does Language Structure Relate to Legal Questions? (1) - Phonetics/Phonology: crucial for voice recognition (speaker identification), also language identification (e.g. identifying where a person is from) - Syntax/Semantics: is a legal text ambiguous or hard to understand? How can it be rephrased to facilitate comprehension or avoid misunderstanding? - “Any person who knowingly distributes a depiction – if the depiction contains child pornography – shall be punished” o Key word is knowingly – what is the scope of actually knowing How Does Linguistic Structure Relate to Legal Questions? (2) - Word Semantics: what does a word mean? o Definitional approach (“Dictionary Approach”): one authoritative, binding definition  E.g. Robbery and Burglary both have a single, binding legal definition o Prototype Approach: how are words commonly used by speakers of a language? What is the core meaning that these usages have in common?  Corpus linguistics  In spoken language, robbery is used as a cover term for some kind of theft, while burglary is usually the correct legal definition Disputed Word Meanings - Legal disputes are often about the meaning of a word - Where legal texts have to be understood by jurors, word meaning cannot rely on “official” definitions alone, but has to consider usage patterns and prototype semantics - Legal documents often contain explicit definitions to avoid disputes or misunderstandings How Does Linguistic Structure Relate to Legal Questions? (3) Discourse Analysis - Understanding how meaning is created in communication o Speech acts are actions performed through words: these words may have legal relevance  E.g. threats, requests, lies, promises  You do these things with words  Misunderstood threats:  Example: #twitterjoketrial – man tweets that he will blow up an airport in a joking manner and he gets arrested. Shows that depending on the context, something can be seen as a threat or not o Speech acts may be indirect – they may perform a speech act function without making this explicit  Example: the statement “I have a gun” may be understood as a threat, but isn’t specifically a threat because the person isn’t saying they will be using the gun or be using it as a weapon in a threatening manner  It’s one thing to pronounce or write different words, but it is also matters how they are understood - “Cooperative Principle” – Grice Theory of Conversational Implicature o 4 maxims, including “maxim of relevance”: in order to make sense of what a person is saying, we assume that it is relevant to the speech situation  If a police officer stops the car and says “does the trunk open?” it is not a request to open the trunk, but most people believe it means to open the trunk because they assume it is relevant to the situation as a request, not as a question of information  Conversationally this would be understood as an (indirect) request, but a legal interpretation may insist on a “literal”, context-independent meaning and argue that it was not in fact a request  By contrast, an indirect threat by a suspect is not likely to receive this literal interpretation Language and Inequality - Differences in language can help understand social inequality: o “the concrete linguistic technique of discourse analysis is an indispensable tool for explaining” inequality o “the law’s power is more accessible to some people than to others” – because of language  The law doesn’t treat everyone equally, but it isn’t necessarily the case  Systematic differences in how legal outcomes differ due to social factors – may be biased (unconscious bias  systematic bias)  E.g. People in court tend to have more success when they speak similarly to the judge or the jury RD JANUARY 23 , 2013 LEGAL LANGUAGE – PROBLEMS AND CONSEQUENCES Why Does Legal Language Persist? - Each legal system creates legal terms that apply within its jurisdiction; thereby creates its own “speech community” of legal professionals familiar with the terms and the concepts they represent o Community of legal professions that have their own culture, their own concerns and experiences that they don’t necessarily share with people outside their community - Legal system based on notion of precedent, so it makes it more conservative that it builds on old usage - But this causes variation by jurisdiction and even by legal subdisciplines (e.g. the word libel has a different meaning in tort law vs. in admiralty law) - Because of such variation and changes over time, legal language is not exact; in legal interpretation, the (assumed) intent of the writer often takes precedence over the literal meaning of words o Always possibility of ambiguity and changes of meaning in words o One approach is to take the words literally (exactly what it was meant even if it doesn’t make sense) and other approach is to say that maybe the author meant something different so the meaning intended is the one people will go with Legal Language Illustrated - Clip from Legally Blonde o Uses newly acquired legal language to intimidate the lay person (boyfriend) to get her possession (dog) back - Examples of legal language o Use of said as determiner (enforcing said ownership) – instead of this or that o Use of heretofore o Use of technical terms (common law marriage, equitable division of the assets, habeas corpus)  Boiler plate: contracts get longer because people add to them instead of taking things out. Material will stay in there that doesn’t serve any purpose o Use of formal terminology (retained this residence, full canine property ownership) - Shows potential power of legal language Legal Language and the Lay Public - Tiersma (1999:69) “emphasis on group cohesion necessarily excludes those who do not belong and who have not learned to ‘talk like lawyers’” - What is difficult to understand? o Technical terms – example: subject matter jurisdiction o Complex sentences - What causes misunderstandings? o Impersonal constructions – example: refers to her friend by last name like a lawyer would do o Legal homonyms When is this a Problem? - Legal language may become problematic in legal documents or communicative documents that need to be understood by lay people - Two Examples: o Consumer contracts (the “fine print”) o Jury instructions Contracts - Legal language may make contracts difficult to understand for lay people - As a consequence, they may not be aware of their rights (or obligations) o Many times documents are too long for most people to read, and difficult for many people to understand with complex technical terms being continually added. As a result, they generally agree without actually have read the document - Linguists have acted as expert witnesses in class action lawsuits which claimed that complex language was deliberately used to mislead or confuse readers Plain Language - “Plain language” advocates seek to make the law and legal documents more accessible to people outside the legal profession o Primarily in cases where lay people need to understand legal documents - Following recommendations by the Law Reform Commission of Canada, many government publications are now printed in “plain language” versions that are intended to be understood by the general public” Plain Language in Contracts - Original Version: o The buyer further promises to pay the holder hereof a delinquency and collection charge for default in the payment of any installments above recited, where such default has continued for a period of ten days, such charge not to exceed five percent of the installments in default or the sum of five dollars, whichever is the lesser - Plain English version o You also promise to pay a late fee if your payment is more than 10 days overdue. The late fee will be five percent of the amount overdue or five dollars. Whichever is less. Summary: Fine Print vs. Plain Language - Consumer contracts or documents issued by the government to the public often contain technical legal language because they are based on written legal texts (e.g. statutes) - Legal language in such documents represents a barrier for communication and may create the perception that texts are meant to hide rather than convey important information Jury Instructions - In the common law system, a trial may be decided by a jury, a group of lay people who evaluate the evidence presented in court during a trial (Jury as “finder of fact”) - In jury instructions, judges explain the law to jurors, to tell them how to go about making their decision - Dumas (2000: 50) “the trial judge attempts to convert a group of ordinary citizens…into experts in substantive law and judicial process” What needs to be communicated in Jury Instructions? - Presumption of innocence o Juror is supposed to assume that the person is innocent - Counteract the “presumption of guilt” o Assumption that accused is guilty  In practice, it is believed that jurors will have the attitude that if someone is accused of crime and is in court, then there must be a reason for it, so they do not expect that they are innocent, even though they are supposed to assume this. - Standard of proof; when is guilt proven? What is “Reasonable Doubt”? - “the words beyond reasonable doubt are everyday words and that is how you should understand them” – Canadian trial judge” - Corpus analysis shows that the noun doubt occurs usually with modifiers that express the absence or near- absence of doubt – speakers generally don’t distinguish different kinds of doubt o Corpus analysis can show how people have used the word in the past, so it can help with understanding the meaning of said word o People don’t really differentiate between different kinds of doubt, even though it is perceived in legal language that there are different kinds of doubt - “A jury must be provided with an explanation of the expression of reasonable doubt. This expression, which is composed of words commonly used in everyday speech, has a specific meaning in the legal context” – supreme court of Canada “Beyond Reasonable Doubt” - Legal definitions: “not a mere possible doubt, a speculative, imaginary or forced doubt” - Original meaning: “having no reason to doubt” (doubt as verb = activity of juror; not as noun = abstract entity) - Solan (1999): “beyond a reasonable doubt” focuses the juror on identifying concrete doubts o Proving that there are certain reasons to have doubt - Courts in England now commonly replace reasonable doubt with phrases like “the prosecution must make you sure” o Focus on subjective certainty in the minds of the jurors not objective determination of certainty of doubt Jury instructions as a basis for appeal - Jury instructions have the potential to influence the jury’s decision-making process - Appeals may focus on incorrect jury instructions - To avoid appeals, judges frequently rely on standard pattern instructions, instead of writing their own instructions specific to the case o Judges look for other instructions that have been used in the past and re-use them Pattern Instructions - Pattern instructions are based on written legal opinions, especially from appellate courts o As a result, it is generally made for legal experts who will be used as sources of reference in later trials – specifically written for lawyers. So, if appellate court states the definition of a term, it will be stated in legal language, which will ultimately prove to be a problem for jurors - As written legal documents, these are not designed for oral communication with lay jurors - Jurors generally do not get these instructions in writing, they have to understand them based on hearing them out loud - Pattern instructions are “legally safe” but not “communicatively efficient” Instructions as Legal Text - Judge Ito took his instructions verbatim from California Penal Code 1096 - The penal code wording goes back to a Massachusetts case from 1850 - In a legal system built on precedents, a wording that was effective once will continue to be used o As spoken language changes over time, such legal wordings may become archaic and difficult to understand Two models of communication - “Conduit Model” (the form of communication in legal contexts) o Speaker puts “thoughts into words”, meaning is transported to the hearer o “uptake” by hearer is assumed to take place automatically (a jury is presumed to understand) o Instructions as legal text - Communication as process o Meaning is not “contained” in words, but is negotiated between participants in context o “uptake” requires feedback and verification o Instructions as communicative act How can it be communicated successfully? - Comprehensibility: use plain English, avoid technical terms unless defined - Timing of delivery: instructions before testimony, not just after - Medium/manner: avoid monotone reading, use of written form in addition to oral instructions, “roadmaps” or diagrams as visual aids - Allow for active participation of jurors in communication LING 2450 – JANUARY 30 , 2013 Do Jurors Understand? - Weeks v. Angelone case o Jury asked for clarification of instructions  Instructions: “you may fix the punishment if you find one of of two aggravating circumstances”  Question: “if we find one of two aggravating circumstances, is it our duty to give the death penalty? How Can Jury Instructions be Communicated Successfully? - Suggestions from Dumas and Heffer: o Comprehensibility of instructions: Plain English, avoid technical terms unless defined o Timing of delivery: instructions before testimony, not just after o Medium/Manner: use of written form in addition to oral instructions; no monotone reading; “roadmaps” or diagrams as visual aids o Active participation of jurors in communication (possibilities for feedback, verification) Summary on Legal Language & Communication - Legal language creates communication difficulties for people who have no legal training - Spoken legal language is often based on written legal language, in particular written statutes or precedents; however written legal language is generally too complex for oral communication - Communication in legal contexts is based on the assumption of the conduit model; it does not take into account differences between written and spoken language “Roadmap” - From legal language (unit 1) to courtroom talk (unit 2) - How do legal professionals and lay people interact in the courtroom (and other legal settings)? - How is the interaction affected by differences in the ways the participants use language? - How is it affected by the interactional structure of the events? - What does the analysis of courtroom talk tell us about inequality in the legal system? Language Variation in Courtroom Talk - Variation in speech styles (“powerless” vs. “powerful” language) - Variation in narrative structure: how do people tell their story (relational vs. Rule-oriented) - Variation in the approaches of judges (5 types) - Variation in narrative structure (2): who gets to tell a story and who doesn’t (e.g. direct vs. Cross-examination) Language Variation - Variation: different ways of “saying the same thing” o Phonology: e.g. about, “nucular”  Example: Regional pronunciation differences – people say same word differently o Vocabulary: e.g. pop/ soft drink / soda / coke o Morphology/syntax: e.g. y’all / you guys / yous / you - Sociolinguistic research shows that variation is regular; it may correlate with such factors as place of origin, age, gender, ethnicity, education, ideology membership in a particular community - The investigation of variation requires close attention to linguistic detail: what do people say and how do they say it? Women’s Language - Lakoff (1975) claimed that certain stylistic features were characteristic of the speech of women, and that these features showed women’s insecurity and subordination o Hedges (kind of, sort of, you know) o Tag questions (isn’t it?) o Question intonation with declaratives (“uptalk”)  You are not actually asking a question, but intonation makes it sound like you are. Not insisting that what you are saying is correct, so you’re putting it out as a question in hopes of someone agreeing with you. o Polite forms of address (sir) o Imprecision (about a mile or so) o Intensifiers (s0, really, totally) o Direct quotes (you said “I don’t know”) - Lakoff’s research inspired many researches to investigate language and gender, ultimately revising and challenging some of her assumptions Powerless Language - In research on language use in courts, O’Barr & Atkins found that this speech style was not unique to women, but was used by relatively “powerless” witnesses, including men - Conversely, women in positions of authority (attorneys, expert witnesses) avoided it - O’Barr & Atkins: correlation reflects women’s limited access to positions with powerful social status Reactions to Powerless Language - Experiments showed that witnesses with “powerless” speech style were less likely to be viewed as truthful, competent or intelligent o Test that had people of the same voice speak differently and ask individuals to listen to the voice (English or French) and rate on a scale the likeability of the voice, truthfulness of the voice, and so on. The English voice was scored higher, sounding more educated and intelligent than French speakers - Common reaction: coach witnesses to avoid powerless language - But: powerless speech style is not a true sign of lies or incompetence - Preferring powerful speech, “the law for society’s patriarchal values” Variation in Narrative Structure - Testimony in small claims court falls on a continuum between rule-oriented accounts and relational accounts; two contrasting ways of understanding disputes Rules vs. Relationships - Rule Oriented: o Focus on rules and principles  “we signed a contract and he didn’t fulfill his side of it” o Law as system of precise rules for assessing responsibility - Relational: o Focus on status and social relationship  “he was rude to me and didn’t respect my ethnicity” o Law as a venue to address notions of social need and entitlement Features of Rule-Oriented Accounts - Narrow focus on contractual problems, framed in legal terms (see page 68) o Arbitrator: tell me... Claimant: ..well the nature of the disa— Arbitrator: the nature of the claim here = Claimant: =the nature of the claim is that umm my photographs were used um for um [xyz] magazine without compensation - Precise reporting of facts (dates, names, etc.) o Claimant: and so it was uh two February of two thousand and four when the pictures were published by [xyz] - Argument supported by documentation o Claimant: here’s a copy of the magazine. It’s the picture was used on the cover and then it was used twice on the inside Features of Rule-Oriented Accounts - Events presented in sequential order - Social relationships/personalities are not discussed - No prior knowledge assumed - Ability to anticipate judge’s questions - Rule-oriented accounts correlate with use of powerful language; they are most likely to be used by people with exposure to law, business Features of Relational Accounts - Focus on social relationship between disputing parties; reporting whole history, not limited to specific points of dispute (see page 71) o Defendant: he emailed saying i’ve seen your magazine and i’d be interested in meeting with you. So i said fine you know he was extremely nice and so he came to my office and he showed me his portfolio. And um so i met him maybe within a week and saw his portfolio and it was extremely talented and so he said you know i’m just i’m just really happy to meet you and you know maybe i could get some work - Events are not always told in sequential order - Focus on moral rights and obligations o Defendant: so i said, well lemme work-and i felt really bad i know you’re married, you have a child and i mean i’m just the ype of person i’m here to help people. You know it’s your decision you make the call if you wanna if you believe that you’re doing the right thing that’s up to you, i know in my heart when i first met you, i told you very clearly i did not have a budget - Relational accounts correlate with powerless language features, more commonly used by women Rules vs. Relationship - Rules: o Focus on rules and principles o Law as system of precise rules for assessing responsibility o Correlates with “powerful” speech - Relationship: o Focus on status and social relationship o Law as a venue to address notions of social need and entitlement o Correlates with “powerless” speech o Characteristic of women in the study Consequences - The law prefers rule-oriented accounts - Many litigants are more likely to use relational accounts (especially women in Conley & O’Barr’s study) - Relational accounts are less likely to be successful (thus women are overall less likely to be successful) - Judges see “relational litigants as hard to follow, irrational and even crazy” Variation in Judge’s Approaches to Decision making 1. “The Strict Adherent to the Law”: sees self as conduit for inflexible law that has to be applied with no regard for the judges own preferences; law is external force beyond their control 2. “The Lawmaker”: sense of fairness and justice overrides respect for legal precedent, decisions may be fair but are extralegal (without appearing as such to the litigants); law is what the judge says it is 3. “The Authoritative Decision Maker”: emphasizes personal responsibility for decision (p.96), makes “no reference to body of law”. “Judgment extends beyond the the personal problems, and sometimes the personal worth, of the litigants.” 4. “The Mediator”: seeks compromise to avoid further disputes between parties; conveys `subtle but powerful sense of authority and control” 5. “The Proceduralist”: “place high priority on maintaining procedural regularity...invest substantial time in explaining procedure to litigants...give less attention to substantive legal issues” (pg. 101) Judges in the Rules vs. Relationship Paradigm - More Rule-Oriented o Authoritative decision makers (judge as ruler) o Strict adherents to the law (“I have no choice”) o Proceduralists: with regard to courtroom behaviour, not with regard to substantive issues of the case - More Relationship-Oriented o Mediators: mediation sees dispute in relational terms - In between: o Law makers: manipulate the rules, but present decision as a result of these rules Variation and Legal Outcomes - “legal results do not flow ineluctably from raw facts, but are strongly influenced by the way in which the judge and the parties weave a fabric of meaning out of the strands of the events that led to the dispute” - Orientations of disputants and of the judge shape the legal outcome; a judge of the type “mediator” or “authoritative decision maker” may respond more favourably to a relational litigant than other judges would Variation in Narratives (2): Who Gets to Tell a Story - Harris: personal narratives may be the most effective way to communicate testimony to jury members - Personal natrrative is a basic genre of everyday interaction - But witnesses cannot narrate freely; are interrupted: “I never get to tell my story” Fragmented Narratives - Courtroom narratives are fragmented by attorney questioning and interruptions - Common features of personal narratives are disallowed by rules of evidence (hearsay, personal evaluations) Narrative Structure - Labov (pg. 59) o 1) Abstract (what about?) o 2) Orientation (who, what, when, where?) o 3) Complicating action (then what?) o 4) Evaluation (so what?) o 5) Result o 6) Coda - Harris: Narratives in trials (pg. 60) o 1) Orientation (circumstances) o 2) Core narrative (what happened) o 3) Elaboration o 4) Point (significant for trial, addressed to jury) Findings - Extended narratives are rare in trials, found only in uncontested testimony - Narratives tend to occur in examination-in-chief (direct examination), not in cross-examination - The “point” of the narrative is made by questioning attorney, through the selection of questions (pg. 68), it is not made by the witness - Witnesses are controlled by attorneys Conclusion - Variation in courtroom discourse relates to social inequality and inequality of legal outcomes - A person’s ability to give convincing testimony and to succeed in legal disputes depends in part on his/her linguistic resources (speech style, narrative approach) - It also depends on the legal setting: what type of judge, what type of testimony FEBRUARY 6 , 2013H Overview - Variation (continued from last time) o Variation in narratives o Variation in judge’s approaches - Speech acts and their interpretation - Power asymmetry in interaction o Effects of stereotypes about gender and culture o Effects of question types in cross-examination Variation in Narratives (2): Who gets to tell a story - Personal narratives may be the most effective way to communicate testimony to jury members - Personal narrative is a basic genre of everyday interaction - But witnesses cannot narrate freely; are interrupted Findings - Extended narratives are rare in trials, found only in uncontested testimony o Narratives tend to occur in examiniation-in-chief (direct examination), not in cross-examination - The “point” of the narrative is made by the questioning attorney, through the selection of questions, it is not made by the witness - In both types of examination, witnesses are controlled by attorneys Conclusions on Variation - Variation in courtroom discourse relates to social inequality and inequality of legal outcomes - A person’s ability to give convincing testimony and to succeed in legal disputes depends in part on his/her linguistic resources (speech style, narrative approach) - It also depends on the legal setting: what type of judge, what type of testimony (direct or cross-examination) Speech Acts - Doing something with (through) language o “Thank you!” (thanking) o ”I promise to remember” (promising) o “Happy Birthday!” (congratulating o Also: ordering, confessing, swearing, denying, making a threat, offering a bribe, sentencing, etc - Speech acts have three components: o Locution (what is being said) o Illocution (what the speaker intends to accomplish by saying it) o Perlocution (what effect it has on the hearer Sentence form vs. Utterance Function - Three basic types of sentence structure appear to distinguish three basic types of utterances o Declarative sentence -- statement (it’s raining) o Interrogative sentence -- question (what time is it?)  Marked by change of word order, and usually has an intonation o Imperative sentence – directive (close the door!) - But there are exceptions (indirect speech acts): o Can you shut the window? – interrogative o Is the pope catholic? o I wonder who’s at the door Form and Meaning - The same linguistic form (locution) can have different meaning and effect, depending on the context o Example: “I have a gun” in different contexts - How do people recognize the right meaning? o They make inferences from context:  Relationship between participants?  Experience and expectations of participants? - Misunderstandings occur if people draw different inferences (e.g. because of cultural differences) Speech acts in Dispute - The interpretation of speech acts is at the center of many trials, such as those discussed in the readings: o Did the alleged rape victim consent to sex, or did she resist? o Did the policemen force (request) the aboriginal teenagers to get into their car? o Did the teenagers admit that they were planning to commit crimes? Saying “No” - In trials about alleged date rape, women are often in the position where they have to prove that sex was not consensual – example: that they resisted - But “no” may not have the illocutionary or perlocutionary force of a refusal (e.g. “no” may not be taken to mean “no”) Social Stereotypes - When a witness’s behaviour is evaluated, it is compared to assumptions about how people should behave (Stereotypes) - Gender stereotypes: Conley and O’Barr argue that there is a “double bind:” women lose by appearing too logical or too illogical (just words, p. 32-34) - Cultural stereotypes: the same behaviour may be evaluated differently in different cultures; o Intercultural conflicts are influenced by and contribute to racial and social stereotypes Intercultural Communication - Different communities have different communicative conventions - When people of different ethnic, linguistic, or cultural backgrounds communicate, they may misunderstand one another because of such different conventions - This has been shown to be an important aspect in US trials involving non-native or non-standard English speakers The Pinkenba Case - Six armed male police officers picked up three aboriginal teenagers (ages 12-14) at a mall at night and dropped them off in an industrial wasteland far out of town - Diana Eades participated in trial as expert on Australian Aboriginal English Disputed Speech Acts in the Pinkenba Case - “They rold us to jump in the car” – was that a command or a suggestion? - Police defense: boys came along voluntarily, didn’t resist o Defense attorney: the boys “didn’t protest and got into the police vehicles when asked” o Consent is defined as the absence of resistance - Context makes command interpretation likely for direct or indirect speech acts (even in the case of “why don’t you get in the car?”) Lexical Struggle - In cross-examination, the defense attorney sought to create the impression that the teenagers meant to commit a crime that night o Witnesses are treated as if they were the accused - This is done through a struggle over words: friends vs. gang/lots; walking vs. wandering/prowling - The attorney uses negative terms and seeks to get the witnesses to accept them (or to stop resisting them) “Yes” means “yes”? 1) Def.At.: There was a gang walking down the street wasn’t there?(2.8) There was wasn’t Witness: Just a group of friends. ... Def. At.: Just a group of louts. (2.2) Is that the situation? (2.5) Well? 2) Def. At.: See if there was anything you could steal that was your whole point wasn’t it? Witness: Yeah. (3.2) indicates 3.2 seconds of silence - “gratuitous concurrence” – not a confession Gratuitous Concurrence - The same interactional mechanisms that give rise to gratuitous concurrence play a role in coercive false confessions - They occur in interrogations where there is a strong power imbalance between questioner and witness/suspect - Factors that contribute to power imbalance are age, gender, social status, language skills, physical strength, or numbers of people - In addition, questioners are in a more powerful discursive position than answerers A Canadian Example - Research on police int
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